Evidence Review Notes

PRELIMINARY MATTERS

EVIDENCE AS A SUBJECT

Evidence as a subject is just a component of the entire Remedial Law as a subject in the Bar examination. This is just a small segment of the entire Remedial Law. Particularly, in our jurisdiction, the Rules on Evidence are found in very few provisions of our Rules of Court. Although there are some other provisions found somewhere else, but primarily the Rules on Evidence are found on Rules 128, 129, 130, 131, 132, 133, so practically there are only 6 Rules constituting the entire Rules of Evidence.

EVIDENCE DEFINED

Evidence is defined as the means, sanctioned by the Rules of ascertaining, in a judicial proceeding the truth respecting a matter of fact.

ELEMENTS OF EVIDENCE

1.      Evidence is just a tool/means

-it is a tool to achieve the ultimate purpose--that is, truth.

-not the end in itself

Evidence	Proof
-means to the end	-total effect of evidence (end result)
-medium of proof	-establishes the truth of the fact in issue

continue reading....

-you cannot equate evidence with proof because if you have evidence, it does not mean that you have proof because evidence has to undergo certain process for it to produce the desired proof

-for example, evidence needs to go through the process of admissibility and sufficiency so that it will achieve the desired purpose of proof—to establish the truth of a fact in issue.

2.      Must be sanctioned (allowed) by the Rules

-meaning, it must be such that is contemplated and allowed by the Rules.

-so, anything presented in court that is not allowed by the Rules is not evidence. That is why we have COMPETENCY—anything that is not allowed by the Rules, anything excluded by the Rules cannot be considered as evidence.

-so it has to be that allowed by the Rules for it to be considered as evidence.

3.      Must be made in a judicial proceeding

-TAKE NOTE: very important element of evidence!

-when we talk of evidence, almost always, you think about judicial proceedings because as a general rule, the Rules on evidence apply only in a judicial proceeding.

JUDICIAL PROCEEDING

-meaning court, that is, bodies created by law that exercises judicial functions.

GR: the Rules on evidence shall be uniform in all courts, in all judicial proceedings.

EXC: (Rule 1, Section 4) “These Rules shall not apply to [the following judicial proceedings] election cases, land registration, cadastral, naturalization and insolvency proceedings”

EXC to EXC: by analogy or in a suppletory character and whenever practicable and convenient.

RATIONALE: because these cases are governed by their own peculiar and specific sets of rules.

SUPPLETORY APPLICATION

-the suppletory character in the application of the Rules of court, including the Rules of Evidence in these types of cases, happen in case their own Rules is silent on that specific question of procedure.

NON JUDICIAL PROCEEDINGS

GR: Rules of Evidence does not apply in non judicial proceedings.

EXC: when their own Rules provide for the suppletory application of the Rules of Court (evidence).

RATIONALE (why Rules of evidence do not apply to non judicial proceedings):

1.      Because the Rules specifically says so.

2.      Non judicial bodies have their own Rules of Procedure.

-their own Rules of procedure may provide 2 things, to wit:

a) expressly provide that the Rules of evidence will not apply

REYES vs. CA

Facts:

Agrarian case filed and pending before the agrarian court. Trial Court admitted the affidavits of the witnesses even if they were not presented during the trial and be subjected to cross-examination. The same was affirmed by the appellate court.

Issue: WON trial court erred in admitting the affidavits.

Ruling:

No.

The lower court committed no error because the rules governing cases filed before the agrarian court, states that 1) the rules on evidence are not applicable even in suppletory character and 2) testimonies of witnesses in the form of affidavits are admissible.

[This case illustrates a situation where the Rules adopted by a non judicial body (DARAB) expressly prohibits the application of the Rules of evidence in all cases before them, even in suppletory character]

b) expressly provide that the rules of procedure will apply in a suppletory character

-example the NLRC rules of procedure

4.      To ascertain the truth

-this refers to the LEGAL TRUTH—that which the evidence says (what is proved by evidence).

-MORAL TRUTH-- if the truth coincides with the reality

5.      Respecting a matter of fact

-in every litigation, there are always 2 issues: the factual and the legal issues

-the purpose of evidence, is to ascertain only the FACTUAL ISSUES

-trial is for the determination of a factual issue, evidence is for the determination of a factual issue.

-you take out the factual issue, you do not speak of evidence.

U.P. Sinirangan

About Us

Sinirangan is a Waray word for Silangan or East to describe the geographical location of the UP campus in Eastern Visayas.

U.P. Sinirangan is an organization formed by and through the efforts of the alumni of the University of the Philippines Visayas Tacloban College mainly as a response to the continuing call of addressing the region’s social problems. The UP Sinirangan envisions itself as a support, network and socio-civic organization of UP Tacloban graduates based in Manila and Cebu. Guided by the principle of establishing a community inspired organization that is committed in continuing public service, nationalism, citizenry and transformative leadership nurtured by century old UP education, dedicated for the advancement and development of the nation and its marginalized sectors.

Easement of Right of Way

          Easement- an encumbrance imposed upon an immovable for the benefit of a community or one or more persons or for the benefit of another immovable belonging to a different owner (cited in Paras, Civil Code of the Philippines Annotated, 1999 ed.).

          Easement of Right of Way is the easement or privilege by which one person or a particular class of persons is allowed to pass over another’s land, usually through one particular path or line (cited in Paras, Civil Code of the Philippines Annotated, 1999 ed.).

          It should be remembered that to be entitled to a legal easement of right of way, the following requisites must be satisfied: (1) the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway; (2) proper indemnity has been paid; (3) the isolation was not due to acts of the proprietor of the dominant estate; and (4) the right of way claimed is at the point least prejudicial to the servient estate (Quintanilla vs. Abangan, G.R. No. 160613, February 12, 2008).

        Article 630 of the Civil Code of the Philippines provides that “The owner of the servient estate retains the ownership of the portion on which the easement is established, and may use the same in such a manner as not to affect the exercise of the easement.”

          However, in a case pending before the court where the owner of the dominant estate claims for his right for easement of right of way, the owner of the dominant estate may file an ancillary relief for preliminary injunction whenever upon proper proof, he will be able to show that he will suffer damages due to constructions made or to be made by the owner of the servient estate in the area subject of the easement.  Thus, the writ of preliminary injunction was granted by the lower court upon respondent’s showing that he and his poultry business would be injured by the closure of the subject road (Buyco vs. Baraquia, G.R. No. 177486               December 21, 2009).

        In one case the Supreme Court held:

        “We are of opinion that the trial judge correctly held that the record sustains the plaintiff's claim of a right of way as indicated by the arrows marked number 1 on the plan of the land submitted by the commissioner and filed with the record. We think however that the form of the judgment entered by him must be modified. He directed merely that this road "be opened for the public use" and by inference imposed upon the defendant the duty of so doing. But there is nothing in the record which would justify a finding that the defendant is charged with a duty to maintain or construct a road across his land. So far as the record disclosed his only obligation in regard to this right of way over his land is a negative one, that is to say, not to obstruct or hinder the free passage over it of any persons entitled to make use of it. While the prayer of the complaint does not clearly indicate the relief sought by the plaintiffs, we think that it may fairly be construed as a prayer for the permanent injunction, and as that is the relief to which the plaintiffs are entitled upon the facts alleged and proven, the trial court should have granted a permanent injunction prohibiting the defendant from obstructing, by the maintenance of fences or otherwise, the plaintiffs' passage over the ancient right of way, which the trial court found to be in a direct line a indicated by the arrows marked No. 1 on the commissioner's plan. (Resolme vs. Lazo     G.R. No. 8654.    March 30, 1914)

        The writ of preliminary injunction is issued to prevent threatened or continuous irremediable injury to some of the parties before their claims can be thoroughly studied and adjudicated. Its sole aim is to preserve the status quo until the merits of the case can be heard fully. Thus, it will be issued only upon a showing of a clear and unmistakable right that is violated. Moreover, an urgent necessity for its issuance must be shown by the applicant.

        Under Section 3, Rule 58 of the 1997 Revised Rules of Civil Procedure, the issuance of a writ of preliminary injunction may be granted if the following grounds are established, thus:

(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually;

(b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or

(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.

        Prescinding from the provisions mentioned above, we have consistently held that the requisites of preliminary injunction whether mandatory or prohibitory are the following:

(1) the applicant must have a clear and unmistakable right, that is a right in esse;

(2) there is a material and substantial invasion of such right;

(3) there is an urgent need for the writ to prevent irreparable injury to the applicant; and;

        (4) no other ordinary, speedy, and adequate remedy exists to prevent the infliction of     irreparable injury “(Marquez vs. Sanchez, G.R. No. 141849  February 13, 2007).

        It is well-settled that the sole object of a preliminary injunction, whether prohibitory or mandatory, is to preserve the status quo until the merits of the case can be heard. It is usually granted when it is made to appear that there is a substantial controversy between the parties and one of them is committing an act or threatening the immediate commission of an act that will cause irreparable injury or destroy the status quo of the controversy before a full hearing can be had on the merits of the case. (Buyco vs. Baraquia, G.R. No. 177486  December 21, 2009).

HAPPY BIRTHDAY MIRIAM QUIAMBAO

A Game You Should Play by Russel S. Pernites

One of the features offered by social networking websites today are the game applications. Through Facebook I came to know the game Icy Tower. I saw a friend who published her accomplishment in the said game. I was curious and tried to open the application. Days passed and I became hooked with the game. I have learned to master the game style, the strategy, the technique.

                                               Icy Tower

Icy Tower, wikipedia described is a popular freeware computer game. It is both an action game and a platform game. An action game is one that involves physical challenges which require coordination of the mind, hand and the eye. A platform game is a game genre which is characterized by jumping from one platform to another (the most famous of which is Super Mario). The game was created by a Swedish game developer Free Lunch Design. The game is set inside a high tower with platforms to jump all the way to the top. The goal of the game is to help Homer the Homeboy (he is the character in skater boy outfit) reach as high as he can by jumping through the platforms. Along the way, you can gain additional scores by doing the combo jump--twirling and ricocheting Homer as he runs fast along the platforms.

Need for Achievement

I loved the game so much that I play it from the moment I open my computer. I also look forward to seeing how I ranked among my friends who play it. Every time I play it I have the goal to improve my previous score and to rank higher (hopefully number 1). I did this everyday to the point that I tremble because of the excitement and the disgust and frustration because the character fell down. When it does fall, you do the game all over again—back to square one.

According to David McClelland in his Theory of Needs, people’s needs can be classified into three: Need for Achievement, Need for Affiliation and Need for Power. These needs are universally observed among people with different cultures. These are also shaped by differing lifestyles and perspectives. In development studies, it is also argued that development is attained because of the people’s desire and yearning to achieve. Even in simple things we want to be better, we want to improve, we want accomplish, we want to achieve.

Realization

By reason of that need to achieve, I play the game to show that I can improve my score, to prove that I can play the game well and to share my rank to others. Until one day, I asked myself, I play the game to achieve? To achieve what? I realized that the game was becoming a habit—a bad habit at that. A bad habit because it took minutes and then hours of my time which should have been devoted to work. It was close to obsession. As of this moment, I have already deactivated my facebook account to keep myself from playing the game (I once in a while reactivate it though, to receive updates from friends and relatives).

This entry is neither intended to discredit the game nor serve as a negative criticism against the game. In fact, I recommend the game to all game enthusiasts who want something to pass their time or relax from a boring life. My point is that we all have the desire to achieve. We all want to improve; we all want to be better. In simple things, including the games we play, that desire will always make manifest. In that desire to achieve we should always remember to do it without compromising others—other people (do not step into other people, learn to appreciate, listen and encourage), our work (earnestly do your work, do not procrastinate), our selves (be critical in every decision, do not be carried by the present euphoria, think and be honest). We want to achieve for the fact that it boosts our morale; we want to achieve because we want to help ourselves and eventually help others but we should reach it not at the expense of others.

P.S.: try playing it Icy Tower and share to me the experience, its good really.

No Post

I went out of office the whole afternoon. I haven't managed to post a blog. haha...(this is a post right?)...heheh

12 Senators Proclaimed

As of today, the last three (3) remaining senatorial candidates has been proclaimed by the COMELEC to complete the twelve new set of Senators who will serve in our Congress for six (6) years. Our new (actually some are re-elected, I wonder why the people chose to re-elect some???!!!!) senators are:

The Prayer by Russel Pernites

Contribution

When I attended the Holy Mass last Sunday, the gist of the priest's message is about our mission to continue spreading the Words of God. The priest related the Homily to the Church's celebration of the World Communication Sunday. He reiterated that aside from spreading the Words, we should also be witnesses to the Words that we spread. 

The priest focused on the importance of the internet on the present life of the people. He cited experiences where the internet served as a medium for spreading the Words of God. He was able to communicate with his friend in Malaysia and learned that he is serving in the Church there. He also received a message from a Catholic who asked if he could just send his confession thru the e-mail (I was really amused when according to him, he replied by saying "just send it directly to God") and a lot more. He showed how the internet facilitated the people's desire to hear the Words of God and the ways through which we can share them. By reason of that message, I convinced myself that this blog should also contain entries wherein I can help in spreading the Words of God. In this little way, I will be able to make a contribution.

The Office

I have been working in a Law office for 6 months. I am doing legal researches, draft documents, go out to meet with clients, transact with government offices or just run errands. There are days when the whole office is turned into a "bring me" or "treasure hunt" game where all of us will be looking for a particular document that is supposedly kept around the corner (records keeping really needs improvement, records keeper and of course human memory too). It is difficult especially when you just took over somebody else's post and not familiar with the lost document. Sometimes we get frustrated and desperate and when that moment comes I just wish I could pray to Saint Jude to intercede.

Saint Jude 

Saint Jude Thaddeus is one of the twelve Apostles of Christ. He is oftentimes referred to as "The Miraculous Saint", "Patron Saint of Lost Causes and desperate cases." He is the respite of those whose hope is lost because at the last moment help will come through his intercession.

        As an Apostle 

St. Jude  Thaddeus,  who  has been  named  tenth  and  eleventh in the list of apostles by St.Mathew and  St.Luke, is the cousin of Jesus ( Mathew 13 : 55 ). He is  the son  of Cleophas and  Mary  Cleophas who is the  sister of  the Virgin  Mary  ( John 19 : 25 ). The evangelists St.Mathew and St.Mark call him as 'Thaddeus', not to mix up with the betrayer Judas Iscariot.The popular name 'Thaddeus' is a Greek name, which means  'great  hearted  one'. True to his name, the world celebrates him today as "The Saint of the Impossible". 

        As an Evangelist

Bible's reference to Saint Jude is short, just as his letter which  is again the last of the 'Epistles of the Apostles'. The 'Acts  of  the  Apostles'  also  do not cover any of  Saint Jude's  Evangelism. But many historians conclude that Saint Jude  preached along with  St. Simon Peter.In ' The  Contendings of the Apostles ', an  ancient  scripture, the preachings of  St. Jude's and preachings of  St. Simon  Peter's in Palestine has been  elaborated. He spread faith  in Christ  starting from Judaea, Galilee, Samaria and  Idumaea, and afterwards in the land of Arabia,Syria and Mesopotamia and came, finally,to the city of Edessa. According to  Eusebius,  he  returned  to Jerusalem  in the 62 AD  for  the 'The Council of the Apostles', and assisted at the election of St. Simon Peter as Bishop of Jerusalem.

        As a Martyr

The Apostle is said to have suffered martyrdom  in Suanis, which was then subject  of  Persia.  Tradition  tells us  that  he  was clubbed  into insensibility and after that his head was shattered  with  a  broad  axe. Another version tell  us  that  the  Apostle was  martyred, aged  80  in Armenia where he was  crucified on a cross and  pierced  with  arrows. Because of  these  beliefs,  St. Jude's pictures and  statues depict him holding a club, an arrow and an axe. 

St. Jude  is traditionally depicted carrying the image of Jesus in his hand. It represents  the imprint of the Divine Countenance that  was  entrusted to him by  Jesus. King Abagar  of Edessa  in  Syria,  asked  Jesus to cure him of  leprosy and also sent  an  artist  to bring  him a drawing  of  Jesus Christ.  Impressed  with  King  Abagar's  great  faith, Our  Lord  pressed his  face on a cloth  and  gave  it to St. Jude to  take  to  Abagar and  cure  him. The King was  cured  and converted to Christianity  along with  most of his subjects.


         As a Saint
After the martyrdom, pilgrims came to his grave to  pray  and  many of them, experienced the powerful intercessions of St. Jude. Thus the title, 'The Saint  for the Hopeless and the Despaired'. St. Bridget of Sweden  & St. Bernard had visions from God asking him to accept St. Jude as 'The Patron Saint of the Impossible'.  In 1548,  Pope  Paul  III  declared  the feast  of  St. Jude to  be celebrated on 'October 28' every year. In  the  18 th century, the  popular  devotion  of  St. Jude  was strengthened  in  France and  Germany. Today, more than ever before,  the world is witnessing St. Jude's  powerful  intercessions on behalf  of  the helpless and the devotion to  St. Jude is spreading with the blessing of our living God. (www.stjudetvm.com/biography.html)

The Prayer

To this end, I would try my best to keep entries which will in one way or another help spread the Words. In times of predicaments and despair may St. Jude intercede through this prayer:

O most holy apostle, St. Jude, faithful servant and friend of Jesus -- People honor and invoke you universally, as the patron of hopeless cases, of things almost despaired of. Pray for me, for I am so helpless and alone. Please help to bring me visible and speedy assistance. Come to my assistance in this great need that I may receive the consolation and help of heaven in all my necessities, tribulations, and sufferings, particularly (state your request) and that I may praise God with you always. I promise, O blessed St. Jude, to be ever mindful of this great favor, to always honor you as my special and powerful patron, and to gratefully encourage devotion to you by publishing this request. Amen.

Opportunity Missed, Opportunity Found

Planetary Conjunction

    Last night the world witnessed a spectacular show on the high heavens. A phenomenon called planetary conjunction took place between Venus and Jupiter. The two planets aligned and below it was the crescent moon (first quarter) exuding a vibrant smile on the backdrop of the clear skies.

    Unfortunately, I was not able to witness it because I was ironing my clothes. A good friend sent me a text message to look at the picturesque moon and take a picture of it. I said that I will look at it when I will finish what I was doing. I forgot about it until a news was flashed on tv regarding the panorama. When I went outside, it was too late. All I saw were stars and the dark clear skies. Too bad I missed a rare opportunity! I got this picture from NationalGeorgraphicNews.com....

Laugh Trip

    Despite the opportunity missed we should view things on the positive light and on a different perspective. A day before the planetary conjunction, we watched a Filipino comedy movie--Here Comes the Bride. The movie revolves around five persons whose lives were dramatically changed because of an accident which happened on a magnetic hill during a solar eclipse. A solar eclipse happens when the moon blocks or covers our view of the sun. It is a rare phenomenon which happens only once in several years. 

    The movie is a mixture of fiction, comedy and reality. It is fictitious because scientific facts were not accurately explicated. For instance, the magnetic hill is not really a magnet nor does it have a magnetic field. Although the presence of Kuya Kim made it all sound veritable, it cannot escape the inquiring mind (hehe). It can rightfully claim success on its hilarity. The casts have played well every person's respective character. The yaya who became a lolo. The lolo who became a young man (the man was originally a beautician, I mean an image stylist), the image stylist who became a beautiful woman, the beautiful woman who was trapped in the body of her old maid, lawyer-godmother, the lawyer-godmother who became a yaya. It was full of twists and turns and the of course the natural comedic talent of the casts are beyond compare. It kept me laughing from the start until the end. On a more serious note, the movie depicts a reality that we should ponder. People are situated differently, may it be in the social ladder, political or economic status and in love. We cannot comprehend the fact that sometimes we are not contented with what we have. We tend to ask and want for more. Some career-driven and successful people want a simple life. Those who have more money has less in relationship. The poor wants money. Sometimes some people set aside love in exchange for fortune. Some want to be young. And the list goes on and on. Sometime we look up at others to the point of idolatry. That is not totally bad. It can be helpful because according to sociologists, it is one way of coping with problems. It drives our desire to work, persevere and succeed like the people whom we idolize. One thing that we should avoid it the feeling of envy and ill desire. 

To this end, I say, what our life will be depends on how we live it today. We sometimes miss opportunities but we should continue living and open our eyes to other opportunities awaiting us. Cynosure.          

Best Poem

This was forwarded to me through email....I want to share it with you...

Nominated by UN as the best Poem of 2006 - Written by an
African Kid

When I born, I black : เมื่อผมเกิด ผมผิว ดำ
When I grow up, I black : เมื่อผมโต ขึ้น ผมก็ยังผิวดำอยู่
When I go in Su n, I black : เมื่อผมอยู่ ใต้แสงแดด ผมก็คงยังผิวดำ
When I scared, I black : เมื่อผมกลัว ผม ก็ผิวดำ
When I sick, I black : เมื่อผมป่วย ผมก็ ยังผิวดำ
A nd when I die, I still black : และ เมื่อผมตาย ผมก็ยังคงผิวดำ

A nd you white fellow : และ คุณ...เพื่อนมนุษย์ผิวขาว
When you born, you pink : เมื่อแรกเกิด คุณมีผิวสีชมพู
When you grow up, you white : เมื่อคุณ โตขึ้น คุณมีผิวสีขาว
When you go in sun, you red : เมื่อคุณ อยู่ใต้แสงแดด คุณมีผิวสีแดง
When you cold, you blue : เมื่อคุณหนาว คุณมีผิวสีน้ำเงิน
When you scared, you yellow : เมื่อคุณกลัว คุณมีผิวสีเหลือง
When you sick, you green : เมื่อคุณป่วย คุณมีผิวสีเขียว
A nd when you die, you grey : เมื่อคุณตาย คุณมีผิวสีเทา
A nd you calling me colored?? : และทำไมคุณเรียกผมว่า คนผิวสี ??

A Walk to Remeber: The Amazing Way by Russel S. Pernites

    This is a re-posted blog. This was first posted in my friendster blog way back December 2006. This was a product of being enamored with the Harry Potter series (I was reading HP and the Half Blood Prince When I wrote this) and the undeniable fact that ties with my high school classmates were strongly knit.

http://quix-blood.blog.friendster.com/2006/12/a-walk-to-reme…he-amazing-way

     Wednesday afternoon was boring, I was partly depressed for the death of Professor Dumbledore, having been engrossed in reading Harry Potter and the Half Blood Prince courtesy of the tickler laugh Preya. After forty winks some of the team amazing came- jen, prey, nim, we took a short walk when we saw a boot, an unusual looking boot missing its pair, hanging on a tree. I grabbed it and the rest did too, we were astonished! It was a portkey! Hedonic sensations and muscle spasms as if we were stretched, bended, and folded..ahh....

    The portkey transported us to the veteran's park, less people yet around, sun starting to set. We took side glimpses then walked around while talking about anything and everything under the sun. After sitting by the sea wall, feeling the warmth of the cold breeze ( no signs of dementors but just freedom and belongingness), the whacky ideas sprouted. We decided to go up the stage not far and just stay there but unexpectedly we joined the children playing patintero beside the stage. They let us in so the game is on. Me and Jen, Nim and Prey together with the rest of the gang! They're like goblins running with us.

    The game was indeed very fun! I have stretched my muscles abruptly, I think I strained it. The rest also did I guess. The group of Nim and Prey won with a margin of two. What is surprising is the team's shared interest..hehe--childish some would think-- the passersby but the hell we care! What's important is we've enjoyed and we've got a bunch of supporters including a mother to one of the kids.We've realized as if looking through the Pensieve that we should really not miss the critical period of childhood and it is great to experience it once more. After we bade goodbye, we took a rest while quenching our thirst with a glass full of mango-shake. Some thoughts transpired. We've agreed that we have narrow sources of happiness..hip hip! Hooray! 

    That's ok!

    We've also took notice of the monicker the children gave-- bo-og, sakang, tambok, to name a few, all referring to their physical features or whatever it is obvious! It is a sad situation that children are stigmatizing fellow children but it is just a child's game! Another realization was that in children what they say passes to the other ear and mean nothing at all. A fight one minute, the next it's gone. Another shocking discovery we found in this children is their mindset, maybe due to the environment and the people they are exposed to. Obscene, frivolous, even blasphemous words come out of their mouth. We just hope they don't attach meaning to them, but just empty words used because they're swak!..hehe

    We've got no notice of the time so the team amazing decided to go home (we can't use time turners anymore). We haven't eaten supper and we should not stay so late for yet another gig tomorrow. 

    Parting time! The four turned on their backs..destination, delibertion, then disapparate!

    

Shadow of Doubt by Russel Pernites

The Shadow of Doubt Probing the Supreme Court is a 267-page investigative book written by Marites Dañguilan Vitug. Ms. Vitug is a distinguished investigative journalist and has written various books which received local and international recognitions. She is also the editor-in-chief of the Newsbreak.

The book has become controversial because of the antagonism for its publication and release. Some members of the judiciary said that the book will shake the foundation of the Institution and it will create distrust and doubt among the people. Some said that the contents of the book are all hearsay because there were no hard proof and evidence presented to prove the same. Names of the reliable informants were withheld, thus, casting uncertainty on its credibility and veracity. All these roused anticipation among the readers so that even before its release reservations in bookstores nationwide were overwhelming. Media reports and exposure even heightened the hype.

I was one of the thousand or million readers who waited patiently for its release. When Ms. Vitug came to Cebu on April 14, 2010 for the Shadow of Doubt book launch, I never hesitated to grab a copy (with autograph and dedication from the author herself. P.S.:Thanks to Atty. John for the opportunity).

The blindfolded lady holding a scale on the left hand and a sword on the right on the background of huge pillars and intricately designed architecture and wall carvings on the cover page creates an inquisitive setting. The high and thick wall, the ancient-like design and the taciturn environment pushes you to open that page and discover what lies ahead, what do its contents say? Are all the criticisms true? Were all the information valid?

According to Supreme Court retired justice Angelina Sandoval-Guttierez, “the book covers an entirely novel and complex subject, an uncharted area no writer has ever sailed…” Indeed, Ms. Vitug displayed incomparable bravery and courage for coming up with this historical treasure. As a law student I have been awed by the judiciary. I have read cases decided by our Honorable justices. I have been an admirer of how our justices use the power of the word and of the pen to uphold the Constitution and the laws. I have studied (and will continue to study) the Rules of Court but we never had any idea on what happens inside the Court and on its people.

Honestly, I have not known Ms. Vitug until this book came. I have not read any article or editorial of her (in fact it is only upon writing this that I have opened newbreak.com.ph and read its contents). I admire the way she wrote the book. She conveys her story to the reader as if you were ordinarily talking inside a coffee shop but she did it in a way that maintains her firmness. She had as much as possible cited dates, names and events. She was one of the few persons I know who is able to see the interconnection of people, events and history. She was able to connect the present with the past--the present decisions and actions of the major role players mentioned in the book with their past and their connections. She was keen even on minute details, on names and dates (though some names were indeed not mentioned due to confidentiality).  

As a whole, I do not consider the book as an “expose” on the judiciary nor an attack on the Institution. I expected a spectacular clash, a humungous cry, a devastating attack but I found it subtle more akin to presenting and introducing the not-so-open to the public branch of the government. I am not saying that it does not deserve its controversial status but I must say that some critics were over reacting. Some of the pieces of information are entertaining, some are interesting, some are shocking, some are revealing, some are terrifying, some are eye-opening, some are vague. At the end of the day, whether or not to believe all these is left to the sole discretion of the discerning mind of the reader.

My salute to ms. Vitug for coming up with this book. It provided a door for “ordinary mortals” to have a closer glimpse at the highly dignified judiciary. It personified our justices. It presented them as humans, not as the Honorable persons whose every move is based on strict rules and tradition. It showed how some faltered but able to gain control and momentum. As I closed its last page, I am hopeful that this book will serve as a continuous reminder for the Institution to be guided not by their personal call but by the Rule of Law and for the benefit of the sovereign people.

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Arroyo: Corona is next Chief Justice - INQUIRER.net, Philippine News for Filipinos

Arroyo: Corona is next Chief Justice - INQUIRER.net, Philippine News for Filipinos

The Success of One Filipino is the Success of the Philippines by Russel S. Pernites

Do not follow where the path may lead. Go instead where there is no path and leave a trail. -- Muriel Strode

Proactive

The May 10, 2010 election is a historic event. After years of people’s clamor for change, now the time has come where the people’s sovereignty is again exercised. I personally impelled myself to go back to Leyte and vote. I voted neither because I was forced by somebody nor paid by anyone. I voted because I want to become part of the huge stride that the Philippines is taking in terms of our political development. I voted because I believe that my vote will make a difference in the direction that our state of affairs will head. I voted because I want to show my fellow Filipinos and the rest of the world that we should be proud of who we are and in our system and institutions. If we want to make some changes, then we should be proactive and refrain from nonchalance.

New Leader

Three days from the day of the election, our new Head of State and Government has been unanimously voted—President Benigno Aquino. The overwhelming result is a well deserved victory because despite all the criticisms and character assassinations the electorate remained firm and chose intelligently. I have observed that the Filipinos have a unique political culture. Whenever we are confronted with a situation, we decide based on that situation alone ignoring history and experience. I must say, that the considerable number of votes received by former President Joseph Estrada substantially depicts that culture. On the other hand, this can also be viewed in a more positive light. President Estrada has done an impact to the “masa”, but he was a victim both of circumstance and of the people around him. Filipinos, I must emphasize do not forget but decide based on the present, they may have seen hope on the former president above and beyond the hope that they saw on the other candidates.

AES

Several critics have been enamored of throwing ill remarks against the “ambitious” Automated Election System (AES) that the COMELEC has adopted. At the outset plans to destabilize and to meddle with the AES have been reported. Major delays and setbacks also arose a few days before the election but by reason of our continued idealism, belief in the system and the people’s vigilance the AES is the true winner!

Thank you to the consolidated and united efforts and cooperation from all sectors of the society—from the media, youth, religious, business, etc. the election was conducted peacefully and successfully. As we continue our journey towards developing our Filipino-style democracy, may we be kept reminded of our goal and be guided by the Creator. Whoever maybe our leader, may he gain the support of all the sectors of the community. We as Filipinos should journey together, it is good to sometimes deflect from the established path and lead a new one so that we will again leave a trail for others to emulate. We have done this when we became the first democracy in Asia and when we exercised people power in EDSA. Mabuhay ang Pilipinas.

Philippine Democracy and Automation of Elections by Russel S. Pernites

“Being stuck is a position few of us like. We want something new but cannot let go of the old old ideas, beliefs, habits, even thoughts. We are out of contact with our own genius. Sometimes we know we are stuck; sometimes we don't. In both cases we have to do something.” -- Inga Teekens

I remember one political scientist commenting that “Philippine democracy is transplanted democracy.” I agree with that because if we trace our political development, we have acquired democracy and developed our present political culture not on our own initiative but because the Americans have transplanted them, literally.

By reason of this “transplantation”, Philippine democracy has not worked as well as its American progenitor. It has been subjected to several criticisms and challenges and will continue to face more debacles on the process.

In the upcoming 2010 elections, the world will be a witness to the historical leap of the Philippines in terms of its electoral process. We have at last made tangible the long been aspired automation of elections—as mandated by our very own Constitution.

This attempt is another replication of the American electoral process. It aims an expeditious election process with perceived lesser fraud and election violations. It had worked in the United States and in other states, surely this will work in the Philippines. The latter argument has received countless oppositions, the automation has even received repulsion prior to its inception, but I stand to support it.

I recognize the fact and considered the advantages and the corresponding disadvantages of the automation of the election process. I stand to support the argument not because of the fact that it work in the United States or in some other developed or developing states but because I believe that the Philippines is capable of making it possible.

As the sovereign citizens of this Republic we should initiate the step to steer the direction of our political development towards a direction reflective of our own political culture. We should start the step leading a trail towards a Filipino democracy. We should not let our country get forever stuck in its present situation. Everything in this world is a cycle but when will the cycle benefit us depends on how we assert every possibility. If everything is well and good being stuck is an excellent choice but our country needs to be alleviated from the quicksand where we fell. Being stuck will be tantamount to death.

I stand to support the argument because I want to prove myself wrong. I want to prove myself wrong in totally agreeing with the political scientist’s observation. I agree with him but now I must qualify, Philippine democracy is a transplanted democracy but Filipinos are taking steps to transform this democracy suitable to the Philippine set-up.

I stand to support the argument because the automation of the election will be the benchmark to show that we have tried to develop our own and we will be able to make it. I acknowledge the disadvantages but it is better to try than dwell all our lives on the “what if’s.” Election time is the most crucial time because it is where democracy at its crux is exercised. It is a time where we make intelligent choices and by reason of the automation of election our intelligent choice will not be marred by unscrupulous fellowmen.

On this issue, I do not want to be a devil’s advocate but be an optimistic spirit, eager to embark and venture new ways. It is difficult to go beyond our comfort zones but this is a peculiar event at a pressing time. I want to become part of history—a history that will mold our political and historical identity and at the same time be a guiding post for the future Filipinos decision making. Adsum.

Legislative Inquiry vs. Question Hour by Russel S. Pernites

In this milieu of globalization good governance has become the most popular mantra among the developing countries. Good governance refers to the efficient and effective administration and management of the resources of the State to achieve maximum benefit for all the members/ inhabitants of the State. The encompassing benefit that everyone is anticipating and clamoring is development.

The Conceptual Framework
The Asian Development Bank in its effort to alleviate the poor condition of nations has formulated a framework called the “Four Pillars of Good Governance” . The components of which are: participation, accountability, predictability, and transparency.
The principle of participation derives from an acceptance that people are at the heart of development. They are not only the ultimate beneficiaries of development, but are also the agents of development.
Accountability is imperative to make public officials answerable for government behavior and responsive to the entity from which they derive their authority.
Predictability refers to the existence of laws, regulations, and policies to regulate society; and their fair and consistent application. The importance of predictability cannot be overstated since, without it, the orderly existence of citizens and institutions would be impossible.
Transparency refers to the availability of information to the general public and clarity about government rules, regulations, and decisions.

Applicability To Democracy
Etymologically speaking, democracy came from the Greek words demos meaning people and kratos meaning rule or rule of the people. It has been accepted in the academic sphere that its main elements are freedom, accountability competition and equality. As I have observed this framework will work effectively in countries which adopts democracy as their political philosophy because the components of the framework are compatible with the elements of democracy. Simply put following the words of the American President Abraham Lincoln, “it is a government for the people, by the people, of the people.”

Philippines As A Democracy
The Philippines after several years of direct and indirect colonization have experienced different forms of governance. We have been through ups and downs, fought battles, defeated and victorious at the same time. These events in our history have molded our present government system. We have adopted the democratic political philosophy of the Americans as evidenced by Article II, Section 1of the1987 Constitution which states that “the Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.”
As earlier stated, this republicanism or government of representatives was patterned after the American Constitution and system of government. Equally important to consider is the principle of separation of powers among the co-equal branches of the government, “obtained not by express provision but by actual division in our Constitution.” Agpalo in his book Philippine Political Law stated that, “the doctrine of separation of powers rests on the assumption that the three great powers of government must not be concentrated in the hands of one man or a group of men, as its anathema to, and destructive of, a democratic and republican form of government.” Inherent to this doctrine is the doctrine of checks and balances. It was instituted to curb or prevent the excesses in the exercise of powers by one branch of government. “Under the checks and balances system, each of the three branches of government limits the powers of the others, and thus, one branch can not become so powerful as to dominate the others.”
Worthy to mention also is another doctrine incidental to the two previously discussed—the blending or commingling of powers of the branches of government. This is the time when the great powers would share with each other to foster faster delivery of services and duties expected from them.

The Dilemma
An issue of paramount consideration in the field of constitutional law is who should prevail among the great branches of government when the doctrine of separation of powers and checks and balances are in conflict?
Article VI, Section 21 states:
The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in, or affected by, such inquiries shall be respected.
Article VI, Section 22 also provides:
The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.
Article III Section 7 states:
The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.
Sections 21and 22 of Article VI are just two of the powers of Congress to check on the actions of the executive branch while Section 7, Article III is a constitutional right guaranteed to the people. This has been a relevant issue recently because these power and right were ostensibly rendered useless by the invocation of executive privilege.
Executive privilege is the power of the government to withhold information from the public, the courts, and the Congress. The privilege could either be: (1) State secrets privilege- information is of such nature that disclosure would subvert crucial military or diplomatic objectives. (2) Informer’s privilege- not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of the law. (3) Generic privilege- for internal deliberations has been attached to intra-governmental documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.

My Stance
All of the Philippine jurisprudence with regard the issue at hand leaned in favor of executive privilege but I am personally critical about it. I submit to the sacrosanctity of the doctrine of the separation of powers but the doctrine of checks and balances should also be placed to work properly.
The Chief Executive performs several functions: chief of State, commander-in-chief, chief diplomat, chief legislator, chief of the party, voice of the people, protector of peace, manager of prosperity and world leader among others. In the performance of such duties and in the fulfillment of the said responsiblities, it is important that certain information that would be detrimental to the State and to the public should be protected. The Presidency involves numerous decision making. According to the "rational actor model" a decision maker in their relations with other decision makers make a compromises in order to achieve the maximum benefit that should accrue to the State. This compromise may mean some advantage forgone in exchange for another or a reward in return for a favor, whatever the case maybe. Issues like this which involve national security and foreign relations should as much as possible be clandestine so as to protect the name of the State in the eyes of the belligerent eyes of the realists international actors.
Indeed every branch of government should respect the powers solely designated by the Constitution. Considering the present cases involving the invocation of President Gloria Macapagal Arroyo of executive privilege in order to avoid answering the questions of the Congress in the performance of their duty to conduct inquiry in aid of legislation, I fear that this will become a venue for the President and for the incoming Presidents to escape the queries with ease. I fear that the Chief Executive would abuse it by claiming every objectionable decisions to be covered by executive privilege. I fear that the privilege will become the respite of our unscrupulous higher government leader.
To shed some light to the morbid part of the issue, we should strike a balance between two demands-- demand for the benefit of the State and demand for the benefit of public interest. I do not intend to make assertions but I anchor my stance on the conceptual framework that I have presented at the beginning of my paper.

Participation
The people as the repository of sovereignty should be empowered. Their participation in governance and the decision making process should be given weight. Senate vs. Ermita stated that "while Congress is composed of representatives elected by the people, it does not follow that in every exercise of its power of inquiry, the people are exercising their right to information."
Although the constitutional right to information and access to public documents is not absolute, the people still have the right to know pertinent matters behind the decison of their representatives in order to create their public opinion and guide in the legitimate conduct of such governmental decision.

Accountability
The members of Congress and the President alike should be accountable to the people at large, who have chosen them as representatives to government. In like manner the people should never be incesssant to remind their representatives that they have a duty to fulfill and an obligation to comply. People should be vigilant of all the undertakings of the government officials and the government officials on the other hand must be considerate of the needs of the people they represent. The members of Congress should continue to make laws that are beneficial to the people. The President on the other hand should refrain from making decisions in closed door that would attract doubt. Arroyo and the next presidents should prove their worth as the highest official entrusted with the management of the country. Executive privilege as the name implies is a privilege that should be utilize when the situation so demands. These situations are related to national security, foreign policy and the like. It should not be used to cover all the anomalies or corrupt practices committed. If transactions do not fall under the exception, the high official should not make it fall under it. If there really is nothing to hide, why should we be afraid to tell the people? Why would we deny Congress an aid to craft legislation? Why would we deny the people their due?

Predictability
The case of Senate vs. Ermita discussed that a distinction was made between the inquiries in aid of legislation (Section 21, Article VI) and the question hour (Section 22, Article VI). While attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation. That department heads may not be required to appear in a question hour does not, however, mean that the legislature is rendered powerless to elicit information from them in all circumstances.
It is important that Congress will be guided accordingly so that the laws that will be drafted will be based on real need and necessity not on mere stipulation. First and foremost in order to clarify this issue, the Congress should make a law which covers the subject of executive privilege. "Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect." Since executive privilege is not expressly stated in the Constitution but a mere exercise by virtue of experience, a law specifying the extent to which this can be used without neglecting the protection of the interest of the State in matters of national security and foreign policy would be beneficial to prevent over use of the privilege as a means of protection by deliberately claiming that transactions are covered by executive privilege. This will become a wake up call to the Chief Executive that (s)he will not always be covered by the cloack executive privilege.
It is to my idea that the laws that will be drafted by Congress will have a humungous impact on the whole society. Laws will be applied fairly if it was drafted fairly with sufficient and relevant facts. Legislative inquiry in aid of legislation should be upheld and should be strengthened to impose good governance on the three branches of the government.

Transparency
Denying certain information to the people would create an environment of distrust between the sovereign people and their representatives in government. Although the Chief Executive is given the privilege to keep information which would affect national security and foreign relations, (s)he should provide with proper explanation on the gravity of the matter and should not leave the public to think about the reasons for such. A statement is subject to several interpretations, on the same hand an invocation of executive privilege in the midst of anomalies and controversies would stir several interpretations which would be against the government. The Chief Executive would always claim protection of the interest of the State, yes it is important to maintain stability in our relations with other states and it is very important to maintain national security but every action should be coupled with transparency and truth because it is an implosion if our government would always claim to protect our image with the foreign countries forgetting that the domestic image has been crashed. A balance should be achieved. A harmony between the public interest and State interest must be established.

To sum up, following the "Four Pillars of Good Governance" as a framework I submit to the doctrine of separation of powers but believes in the doctrine of checks and balances to promote healthy democracy. Executive privilege is not a privilege to be scorned at because there really are matters that should be kept to preserve the State. But this privilege should not be abused to the advantage of the person who are only designated by the people to represent them in the administration of the State. There should be a balance between the demands of public interest and the demands of secrecy. I would never forget President Arroyo's promise of "building a strong Republic", I have been waiting for that, I have been expecting from her promises but it seems that I will continue and be patient to wait for some time. Good governance is the solution for all the problems of the Philippines. Good governance is the way to build a strong Republic. Good governance is achievable if their is observance of proper power allocation and devotion to the cause of promoting the interest of the State. We are all dreaming of rising from the ditch that we are in, don't stop dreaming but if our government leaders would continue to struggle for power, to gain from the government, and to abuse their position everything will just be a dream. Like the story of an Argentinian author, we would always stay in the "circular ruins."